A Client Is Killed

A legal clinic's director recalls the aftermath of a client's murder.

A few days after Thanksgiving in 2012, I was on sabbatical in Cape Town, South Africa, when I answered my cell phone and learned that our client had been killed. Sixteen months earlier at our school's family law clinic, I had taken Anna on as a client and approved her case as a "simple divorce" that our second- and third-year law students could handle as first chair. She was a beautiful young woman in her twenties.

Anna's husband told the police he was angry because she refused his divorce settlement offer - so angry that he shot her multiple times in the face. I couldn't believe that she had died in such a violent way. I couldn't breathe.

A few weeks after getting the news, I returned to campus in Oregon and called everyone in: our students, faculty, staff, and a counselor from the State Bar. Each of us shared our fears, sense of failure, and frustrations. We were in a collective state of pain, shock, and guilt, and I felt responsible for it.

During the months that our clinic represented Anna, the case proved increasingly challenging. Opposing counsel was among the most difficult we had ever encountered. Anna's husband was abusive and manipulative, and we believed he was being fed unreasonable expectations by his attorney. Trying to gain traction in the relationship between the two parties' counsel, we cycled through two staff attorneys and one from outside. For the first time in my career, our side filed a bar complaint, and three were lodged against us. Although all were eventually dismissed, it felt like we had lost control.

Eight months went by after Anna was killed, and it seemed that our practice was finally returning to normal. Then one day our office manager entered my office nervously and handed me a black business card that read "Thomas Orin Investigations."

"What's this?"

"There is a man in the lobby asking me questions about our representation of Anna. He wants to know who wrote this memo," she explained as she handed over a document labeled "Confidential Attorney Work Product."

"What?! How did they get our work product?"

Then I quickly recalled that our case files had been subpoenaed by the district attorney's office. We had initially objected to the subpoena, but after conferences with lawyers, a professional responsibility expert, and the General Counsel's Office at the State Bar, we complied. The DA must have given our files to the husband's criminal defense attorney.

I knew that the attorney-client privilege survives death in some jurisdictions. Who could forget the U.S. Supreme Court's 1998 decision in Swidler & Berlin v. United States holding that attorney notes from a meeting between deputy White House counsel Vincent Foster and his lawyer just days before Foster's suicide remained privileged even after his death?

Our clinic had many ethical questions to consider, including: Was Anna still our client?Â If not, who was? How and when would we conclude our representation? What would we do about the dissolution matter? Should we assist with the murder prosecution?

We learned that Anna's death meant our representation was over - and because she had no court-appointed personal representative, the attorney-client privilege also ended. The dissolution matter was dismissed. The husband pleaded guilty, and the DA asked one of our students who had been close to Anna to testify at the sentencing hearing. He received a term of life in prison.

A few months after the sentencing, a colleague on a list-serve asked if anyone had experience dealing with a client's death. Another young woman had been killed by her estranged husband in a domestic-relations case being handled by a law school clinic back east. The murder was devastating to the client's legal team. As I picked up the phone, I reflected on the simple truth learned in the wake of Anna's death: Nothing prepares you for the murder of your client - not law school, not the ethics rules, nothing.

Warren Binford, an associate law professor, directs the Clinical Law Program at Willamette University in Oregon. A member of the California State Bar, she previously practiced law at Pillsbury Winthrop Shaw Pittman in Sacramento.

#296973

Kari Santos

Daily Journal Staff Writer

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